>>> Item number 19, dated 93/07/13 19:52:20 -- ALL
Date: Tue, 13 Jul 1993 19:52:20 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: RICHARD JENSEN <CAMPBELLD@APSU.BITNET> Subject: Nova Scotia legal system?
From: mckay@hypercomp.ns.ca (Alasdair Mckay) Subject: Nova Scotia
I wonder if this would be an appropriate place to enquire if anyone is conversant with historical legal matters of the 17th and 18th century concerning Scotland and Nova Scotia?
Nova Scotia : Established by royal charter to Sir William Alexander in the 1620s
Ceded by Charles I to France in the 1630s (to speed up the
payment of some funds owed to him from France)
1630s to early 1700s. Settled by farmers of French stock who
developed a separate identity as "Acadians".
Ceded to the United Kingdom under the terms of the Treaty of
Utrecht. (ca. 1712).
Scotland : 1707 Treaty of Union with England to form the U.K. Legal
systems of the two regions remain separate - an arrangement
which continues in perpetuity.
The whimsical conundrum is, under this historical setting, whether the English or the Scottish legal system was appropriate for establishment in that province. (Elements from Acadian and aboriginal traditional laws would be expected additions.)
The question would seem to turn principally upon the precise implications of
the original charter and upon the traditionally accepted duties and privileges
of the Kings of Scots, which were rather different from those of Monarchs in
countries such as England and France. Presumably James' ( I and VI ) intended
that the new territory would be more or less his personal posession, in the
manner in which the Congo was the property of the Belgian monarchs, and as such
could be disposed of by him for any trivial reason. If this were not so, then
Charles, in his capacity of King of Scots would not have been justified in
alienating
the territory under any circumstances other than foreign conquest. In that
event, when the U.K. regained the territory in the early eighteenth century, it
would presumably have been appropriate for the Nova Scotian legal system to have
reverted to that of Scotland rather than that of England.
I would be glad of comments about the above. The interest is principally one of history, but the last decade has seen Canadian legislators raking back through eighteenth century treaties in connection with quite different constitutional matters, so that there could conceivably be some minor consequences for the present day, if we discovered that we were operating on the wrong legal basis here in Nova Scotia.
David Walker (The Oxford Companion to Law, Clarendon, 1980) has noted, in writing about Scots Law :
" A major difference is that although English law was spread all over the world, though Scots may have emigrated and settled, Scots law has remained restricted to its homeland. This has been due, since 1707, to Cabinet and Parliamentary ignorance, neglect and exclusion of Scots Law when dealing with British affairs, and the arbitrary rule that persons of British stock emigrating took with them English law with all its complications. It is also assumed that British law is English law." Alasdair McKay
>>> Item number 22, dated 93/07/14 08:03:47 -- ALL
Date: Wed, 14 Jul 1993 08:03:47 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: Re: Nova Scotia legal system?
Forwarded message:
>From LISTSERV@UICVM.UIC.EDU Tue Jul 13 20:20:12 1993
From: tloo@sfu.ca
Message-Id: <9307140119.AA22420@fraser.sfu.ca>
Subject: Re: Nova Scotia legal system?
To: H-LAW@UICVM.BITNET
Date: Tue, 13 Jul 93 18:19:31 PDT
In-Reply-To: <9307140052.AA10896@whistler.sfu.ca>; from "RICHARD JENSEN" at Jul
13, 93 7:52 pm
X-Mailer: ELM [version 2.3 PL11]
13 July 1993
To: Alasdair Mckay
From: Tina Loo (tloo@sfu.ca)
I don't know anything about Nova Scotia legal history, but my colleague, Jim Phillips, has written extensively about 18th century Nova Scotia legal history, specifically the criminal law. He's not on this network, but you can reach him at:
Faculty of Law
University of Toronto
78 Queen's Park
Toronto, Ontario
M5S 2C5
If he can't help you directly with your query, he'll likely know who can.
Good luck.
Tina Loo
Department of History
Simon Fraser University
Burnaby, British Columbia
V5A 1S6
>>> Item number 23, dated 93/07/14 08:32:50 -- ALL
Date: Wed, 14 Jul 1993 08:32:50 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: Re: Nova Scotia legal system?
Forwarded message:
>From LISTSERV@UICVM.UIC.EDU Wed Jul 14 08:18:02 1993
Message-Id: <MAILQUEUE-101.930714190352.416@uriah.law.mq.edu.au>
To: RICHARD JENSEN <CAMPBELLD@APSU.BITNET>, H-LAW@UICVM.BITNET
From: BRUCE@uriah.law.mq.edu.au
Organization: LAW SCHOOL MACQUARIE UNIVERSITY
Date: 14 Jul 93 19:03:52 GMT+1000 Subject: Re: Nova Scotia legal system? Priority: normal X-Mailer: Pegasus Mail v2.3 (R4).
Another question might be whether early Nova Scotian law was as English as the Blackstone theory would have had it. The more research we do in Australia, the more we find evidence of striking differences between local and English law. That waned, of course, so much so that by the time I was at Law School (early 70s) we were taught English cases as if they were as binding as those of our own High Court. Perhaps the current emphasis on finding differences is part of a wave of nationalist sentiment recently, including the strong push to republicanism.
Bruce Kercher
>>> Item number 24, dated 93/07/14 16:02:48 -- ALL
Date: Wed, 14 Jul 1993 16:02:48 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: Re: Nova Scotia legal system?
One wonders, given the history of the law applied to the acadians who moved south, to Louisiana, whether the French Code Naplolian (sp?) would be the more appropriate, rather than either the English or the Scots law.
Kenneth Salzberg ksalzber@hamline.edu Hamline University (612)641-2354
School of Law
>>> Item number 26, dated 93/07/14 16:06:34 -- ALL
Date: Wed, 14 Jul 1993 16:06:34 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: Re: Nova Scotia legal system?
Another question might be whether early Nova Scotian law was as English as the Blackstone theory would have had it. The more research we do in Australia, the more we find evidence of striking differences between local and English law. That waned, of course, so much so that by the time I was at Law School (early 70s) we were taught English cases as if they were as binding as those of our own High Court. Perhaps the current emphasis on finding differences is part of a wave of nationalist sentiment recently, including the strong push to republicanism.
Bruce Kercher